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The first appellate district court of California has reversed Neasham’s conviction of committing theft from an elder and dependent adult stemming from his 2008 sale of a MasterDex 10 Annuity to then 83-year-old Fran Schuber.

A document released by the court states, “Although there was conflicting evidence as to the elder’s inability to understand the nature of the transaction, there was no evidence that defendant appropriated the elder’s funds to
his own use or to the benefit of anyone other than the elder herself, nor was there evidence that defendant made any misrepresentations or used any artifice in connection with the sale. Moreover, the jury was incorrectly instructed that
to convict it need find only that the purchase of the annuity deprived the elder of a major portion of the value or enjoyment of her property, eliminating the necessity of proving that defendant had any such intention. Hence, defendant’s conviction must be reversed."

A complaint was originally filed against Neasham on December 8, 2010, and an information filed on April 15, 2011, stating he “committed theft and embezzlement with respect to the property of an elder and dependent adult, said property having a value exceeding $950.00, and knew and reasonably should have known that said person, Fran Schuber, was an elder and dependent adult.”

The appellate court’s opinion notes that Schuber’s boyfriend, Louis Jochim, testified that Schuber “was very clear in her mind at that time,” and also cites Neasham’s former assistsant, who said Schuber “was very clear in her mind at that time.”

It then notes that the jury was instructed that in order to find Neasham guilty of violating Penal Code section 368, the prosecution needed to prove: "1. The defendant took possession of property owned by someone else; 2. The defendant
took the property without the owner’s consent; 3. When the defendant took the property he intended to deprive the owner of it permanently; or removed it from the owner’s possession for so extended a period of time that the owner would be deprived of a major portion of the value or enjoyment of the property; and 4. The defendant moved the property, even a small distance, and kept it for any period of time, however brief.”

"Even assuming that Schuber was incapable of giving effective consent to the purchase of the annuity, defendant’s acceptance of payment for the annuity cannot be considered a trespassory taking of possession of her property within the meaning of the larceny instruction," the opinion continues.

The reversal notes that Neasham received a cashier check payable to Allianz and transmitted it directly to the insurer, which then issued the annuity policy. "He did not take her fund s or convert her property for his own use or the use of any
other person; as the amici argue, he did not deprive her of any property but instead placed her funds into an investment instrument of equal value to the monies withdrawn from her certificate of deposit."

The policy was issued in Schuber's name and she had 30 days after the issuance to cancel the policy and receive a full refund.

And while the prosecutor focused on the potential penalty Schuber could have suffered had she withdrawn more than 10 percent of the policy within five years of issuance, "there was no evidence that Schuber had any intention or need to make such a withdrawal, the penalty did not apply if she became hospitalized or moved to a long-term care facility and, most importantly, there was no evidence that this standard term reduced the value of the policy to less than she paid for it."

The prosecutor also argued that Schuber's decision to transfer funds from a CD to the annuity was not in her best interested due to her age, but "That ... is a matter of judgment over which reasonable persons can, and the witnesses did, disagree."

In addition, the opinion found another reason the conviction could not stand. A conviction of larceny requires an intent to steal - "to deprive the owner of her property permanently."
"The jury was thus authorized to find defendant guilty if it agreed with the prosecution that the terms of the annuity had the effect of depriving Schuber of a major portion of the value or enjoyment of her property, even if defendant had no such intention."

In the prosecution's final argument, she told the jury that "Neasham doesn’t need to know that this product is necessarily not good for [Schuber], . . . it’s really the fact that she couldn’t understand.”

According to the opinion, " The elimination of the intent requirement unquestionably misstated the law in an essential respect."

It continues, "There can be no doubt that this error was prejudicial. The omission of an essential element of an offense from the court’s in
structions is an error of constitutional significance since the defendant is entitled to a jury’s finding that all elements have been
proved beyond a reasonable doubt.

Moreover, had the jury been properly instructed, the outcome likely would have been different. The jury apparently was
convinced that, at her age, it was not in Schuber’s best interest to purchase an annuity that limited her access to more than 10 percent of the principal for five years. But there is no reason to believe that defendant did not in good faith believe otherwise and had no intention of depriving Schuber of anything, much less of a portion of the major value of
her funds. Theft is a specific intent crime requiring the intent to steal. By permitting the jury to find defendant guilty if
it found that the annuity deprived Schuber of a significant portion of the value or enjoyment of the funds with which she purchased it, regardless of whether the defendant considered the annuity to increase the value of her holdings and
had no intention to deprive her of anything, the court prejudicially erred. Indeed, it is doubtful whether one who gives equal value in exchange for property received can ever be found to have intended to steal the property received.

Defendant’s conviction must be reversed. "

Neasham told ProducersWEB, "I'm really happy that it's over and I"m looking forward to getting on with my life."

He said he now plans to consult with an attorney regarding the next steps in getting his insurance license back.

About the Author

Paul Wilson is the managing editor of ProducersWEB.com and Retirement Advisor magazine. He lives with his wife and two sons in Denver and can be reached at pwilson@summitpronets.com or on Twitter at @paulwatpweb. Please contact him if you would like to submit content or if you have any other ques... More